De Bolt v. Kansas City, Ft. S. & M. R. Co.
| Decision Date | 25 June 1894 |
| Citation | 27 S.W. 575 |
| Court | Missouri Supreme Court |
| Parties | DE BOLT v. KANSAS CITY, FT. S. & M. R. CO. |
1. Deceased, sent by his employers to oversee some of their men unloading stone from a flat car, climbed on the car to speak to the men. While they were talking, a switch engine took the stone car and four cars behind it out on the main track, there dropped a car, and "kicked" the others back on the side track. The men on the stone car stayed on for the ride. Deceased and another sat on the end board of the next car facing the stone car. The "kick" was somewhat harder than it need have been, and the brake on one of the cars "kicked" would not work. As they were about to collide with standing cars, several persons called to those on the stone car to look out. Deceased's companion threw himself back into the car. Deceased tried to step or jump onto the stone car, but was thrown between the cars and killed. Those on the stone car were not injured. Held, that deceased's own negligence caused his death. Barclay, J., dissenting.
2. In an action under Rev. St. 1889, § 4425, for damages for death caused by negligence of defendant's servants in running cars, plaintiff cannot show that the accident was caused by a defective brake.
In banc. Appeal from circuit court, Jasper county; M. G. McGregor, Judge.
Action by Sophia C. De Bolt against the Kansas City, Ft. Scott & Memphis Railroad Company, under Rev. St. 1889, § 4425, for damages for death caused by negligence of defendant's servants in running railroad cars. Motion to set aside nonsuit refused. Plaintiff appeals. Case transferred from division 1 by agreement of the judges. Affirmed.
This action was brought in the circuit court of Jasper county, by the plaintiff, as the widow of Frank De Bolt, to recover of the defendant statutory damages for negligently causing the death of her husband. The action was commenced within six months after her husband's death, which occurred June 8, 1891. The petition states the following facts as the basis of the recovery sought: "That on the 8th day of June, 1891, and within six months before the bringing of this suit, her said husband, Franklin A. De Bolt, was engaged in directing the unloading of a flat car loaded with stone, which car was standing on the west switch of defendant's railroad tracks at Webb City, Jasper county, Missouri, at the place where defendant's servants and employés had placed it to be unloaded, and on the track where cars to be unloaded are usually placed by defendant at Webb City, and said Franklin A. De Bolt had several men and teams, which he was then and there directing in the unloading of said car of stone, and he was busily engaged in said work, and while he was so engaged defendant's servants and employés, in making up a train of freight cars, came upon the switch where the car on which said Franklin A. De Bolt was at work as aforesaid was standing, coupled with other freight cars on said switch while so standing, and all of which cars were not part of a train, but were standing on the switch aforesaid, used for unloading cars, and coupled the engine to the car nearest the main track; and there were other cars between the stone car and the engine when the engine was coupled to said cars so standing on the switch coupled together; and without giving said De Bolt and his men any notice of their intention to move the stone car, or allowing time to alight from the same, the engine, when so coupled to the cars, under the direction of the conductor, and managed and controlled by the engineer, both servants of defendants, pulled the cars from the switch out on the main track, including the flat car loaded with stone, on which said De Bolt was at work, and thereby carried said De Bolt and the men at work on the car under his direction out on said flat car, and when the cars that were detached from those cars so taken from the switch had been placed on the main track, then a `flying' switch was made, with the stone car and the others yet coupled with it, by which this stone car, upon which said De Bolt and the men were all remaining, as they had been taken out from the switches before stated, was, with the other cars coupled to it, by the `flying' switch `shunted' or `kicked' in on the switch from the main track with such a force as to drive the cars against other cars that were standing on the switch, and with such force that in striking the standing cars the momentum of the moving cars was so great that the striking — the force — knocked said De Bolt from the stone car under the wheels of the moving stone car, and the force of the moving car was so great that, when the wheels had run upon and crushed the legs and person of said De Bolt, the brakebeam struck his body, and pushed him along on the track of said railroad, over a large stone, for the distance of half a car length, or about sixteen feet, and so badly injured him that he died from the effects thereof." The answer was a general denial, and a plea of contributory negligence. After hearing the evidence, the circuit court sustained a demurrer thereto. The plaintiff took a nonsuit, with leave to move to set the same aside, and in due time filed her motion to set aside, which motion was overruled, and she appeals therefrom.
Objection is made in this court to the sufficiency of the affidavit for appeal. While open to criticism, we think it is substantially sufficient. No point was made against it in the trial court, and the objection here would not justify a dismissal of the appeal.
The substantial question for our determination is the propriety of sustaining the demurrer to the evidence. The following undisputed facts appear from the evidence: A flat car, loaded with stone, belonging to William Blackledge & Son, had been placed upon a side track of the defendant, at Webb City, for the purpose of being unloaded by the owner of said stone. This car was coupled at the north end to another car, loaded with coal, and the coal car was coupled on the north with a box car, to which still another car was coupled. Blackledge & Son were contractors engaged in building, and plaintiff's husband was in their employment. On the morning plaintiff's husband was killed other laborers were engaged in unloading the stone from the car, and loading it on wagons, and hauling it away. Several loads had been removed from the north end of the car, next to the coal car, leaving that end clear, when Mr. De Bolt, plaintiff's husband, arrived at the car, between 9 and 10 o'clock that morning. His business there was to superintend the unloading for Messrs Blackledge. When he reached the car loaded with stone, there were three laborers upon it, — Perry, King, and Marshall; and he also climbed upon it. When he got upon the car, he began to talk with Marshall about placing a derrick to unload the remainder of the stone. About this time the employés of the defendant's railroad began to switch in the neighborhood, and Marshall, seeing this, directed one of the teams to drive out of the way. No stone was unloaded after that before Mr. De Bolt was hurt. It is admitted that it was no part of his duty to assist in unloading the stone. He was there merely to superintend it. A switch engine was moved up from the south, and coupled to the stone car, and this car, with those attached to it, were all pulled out on the main track, in order to set out the fifth car of the group. After passing onto the main track, the fifth car was left on that track, and the other cars, including the stone car, were again moved on the switch or side track, and shunted or "kicked" north, in charge of a brakeman, towards the place from which they had been moved. Other freight cars were standing on this side track still further north of the place from which they had been moved. When the switching began, Perry, King, Marshall, and De Bolt were all on the stone car, on that part from which the stone had been removed. They all saw and knew of the switching, and all remained on the cars, though at least two stops were made while it was going on. After the switching began, Perry and De Bolt left the stone car, and crossed over to the coal car, and sat down on the end board, with their faces to the stone car, and their feet hanging down between the coal car and the stone car. They sat in this position, discussing a school building, during the remainder of the switching until immediately before the accident which cost Mr. De Bolt his life. King and Marshall remained standing on the cleared space on the stone car, and some boys had also climbed upon the stone car. When the cars were "kicked" back, they were sent with such force that they were carried beyond the point at which they had stood when the switching began, and collided with the other stationary cars on the side or western track. The brakeman in charge set up the brake on the coal car, and attempted to set the one on the box car, but for some reason it would not hold, and he called to the men on the stone car to "look out" before the collision. It seems they all anticipated the collision would produce a hard shock. Perry, who was on the coal car with De Bolt, says, "I looked around, and saw they were about to strike together, and threw myself back on the coal car, back on the coal, and De Bolt jumped off on the stone car, and just about the time he struck the stone car the cars ran or bumped together, and he fell backwards between the cars." Marshall, who was standing on the stone car, hallooed, and said, "Look out, gentlemen, some one will be hurt!" and, just as the cars struck, De Bolt jumped from the coal car, and the shock overbalanced him just as he reached the stone car, and he fell between them. The front wheels of the stone car ran over him, and dragged him from 12 to 16 feet, and he died that day. No one of the other men and boys on either of the cars was hurt. Those who were standing on the...
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